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March 10, 1995

DONNA SHALALA, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: RUBEN CASTILLO


 Cunningham is a 52 year old *fn1" male who claims that he became disabled on December 15, 1990 *fn2" due to a back problem and weakness in his left leg. (R. 90, 94) He ended his employment as an assembly line worker with Sara Lee on December 15, 1990, when the company relocated its plant to South Carolina. (R. 45, 47, 56) Some of Cunningham's alleged physical problems appear to date back to a car accident in 1975 or 1976, sometime after which his neck began to bother him. (R. 56-59) On February 22, 1977, Cunningham was admitted to Cook County Hospital where he underwent two surgeries: an anterior cervical fusion with Kiel bone, C5-6 and discectomy C4-5; and, shortly thereafter, an anterior cervical fusion with iliac bone graft, C4-5. (R. 132) Cunningham's final diagnoses were: (1) cervical spondylosis; (2) C5-6 myelopathy by compression; and (3) wound infection. (R. 132) Cunningham also suffers from back pain, which became severe in the fall of 1988. (R. 59-61) On December 21, 1988, Cunningham was again admitted to Cook County Hospital where he underwent a micro-discectomy at L5-S1. (R. 148) His pre- and post-operative diagnosis was a herniated disc at L5-S1. (Id.)

 Cunningham applied for a period of disability and disability benefits on December 20, 1991 (R. 90-93) and applied for supplemental security income on November 22, 1991. (R. 94-97) Both applications were denied initially and on reconsideration. (R. 98-101, 103-05, 106-08) Cunningham requested a hearing before an administrative law judge, which was held on May 20, 1993. Following Cunningham's hearing, Administrative Law Judge Richard F. Sprague ("the ALJ") issued a written decision on September 16, 1993, denying Cunningham's applications for DIB and SSI. (R. 20-27) The ALJ's decision became the final decision of the Secretary when the Appeals Council denied review on December 22, 1993. (R. 2-3) This action commenced when Cunningham filed a complaint for judicial review, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), on February 18, 1994. The Court now turns to a consideration of the record in this case to determine whether the ALJ's decision is substantially supported by the record.

 Cunningham's Testimony

 Cunningham, represented by counsel, testified in his own behalf at the hearing before the ALJ. He stated that he completed school in Alabama through the ninth grade and that he has had no vocational or specialized job training. *fn3" (R. 43-44) Cunningham is divorced and has three children-two by his former wife and a third by another woman. (R. 41) He lives in a 19th floor apartment with his 25 year-old daughter. (R. 42) Presently he has no income, his daughter pays for everything; although, he does receive food stamps. (R. 44)

 Cunningham worked for Sara Lee as a "Group Leader" in the bakery. (R. 45) In that capacity, he served as a fill-in person on a bakery assembly line, ensuring that everything was running properly and filling assorted positions as needed. (R. 45-46). The assembly line to which he was assigned involved five different positions and Cunningham filled each of them at various times. All of the positions required Cunningham to be on his feet moving around and lifting various amounts of weight. (R. 49-53) Cunningham's employment with Sarah Lee ended when the company relocated its operations to South Carolina in December of 1990. (R. 56) Thereafter, Cunningham collected unemployment for approximately one year while looking for work. *fn4" (R. 56)

 Cunningham recounted that he was hospitalized twice for surgery. (R. 57) The first hospitalization, which was for neck surgery, was in 1977. *fn5" At that time, Cunningham was in the hospital for approximately three weeks and was in therapy for six months. (R. 58) He was out of work for six months. (Id.) Cunningham's second hospitalization-for back surgery-was in 1988. (R. 60) Following his second surgery, Cunningham was out of work for approximately two months. (R. 61) When he returned to work he was given light assignments for another two months. (Id.)

 Cunningham testified *fn6" that he suffers every day from varying degrees of pain in his back and left leg. (R. 68-69) He described the pain as a throbbing pain, originating in the lower back, radiating into his hips and buttocks, down his left leg, and into his calf. (R. 70) His pain is severe most of the time and has gotten worse over the last couple of years. (R. 70-71) The pain is aggravated if he attempts to lift anything. (R. 71) Cunningham frequently wakes up at night because of the pain. (R. 74)

 Although Cunningham is able to take care of his personal needs-such as washing, shaving, grooming and dressing-his daughter, with whom he lives, does all the housework, cooking, laundry and shopping. (R. 74-75) He testified that he can only walk "about a block" before he "start[s] losing [his] balance and then stumbling and dragging [his] left leg." (R. 77) Climbing stairs also gives him trouble if there is nothing for him to hold on to. (R. 79) However, he has not needed a cane or other assistive device for walking. (R. 71) He can spend only 35-45 minutes on his feet at one time without experiencing severe problems. (R. 77) Also, he is only able to sit for approximately 30-45 minutes without experiencing severe problems. (R. 78) Also, it is difficult for Cunningham to get up after sitting; it takes him a while to get "stretched out." (R.77) Cunningham is unable to lift any amount of weight while stooping or squatting, and can lift about 5 to 10 pounds off a table. (R. 78-79) Cunningham stated that he drives approximately once per week (R. 43), and that he can take public transportation by himself. (R. 79) Cunningham does not do much socially; he does not go to restaurants or shows (R. 75), but he occasionally goes to his brother's house to visit. (R. 76) When he does go to his brother's house, he is either picked up by his brother or driven by his daughter. (Id.) He also has a woman friend whom he has been seeing for a couple of years that he sees on weekends. (Id.) Occasionally, Cunningham babysits for friends in the building in which he lives. (R. 72) He has no hobbies and belongs to no clubs. (R. 73) He attends church occasionally. (Id.)

 Cunningham began to see a Dr. Russell for his back pain approximately two years before the hearing. (R. 66) Although Cunningham indicated that for a while he was seeing Dr. Russell "pretty regular[ly]", he stated that he saw Dr. Russell only three or four times in the last year (R. 66), and he estimated that he had seen a doctor a total of five times since he stopped working. (R. 68) Cunningham stated that he does not have the money to see a doctor on a regular basis. (R. 67) When asked what the doctor does for him, Cunningham replied that he prescribes pain pills. (R. 66) Upon further inquiry, Cunningham stated that he has taken prescription Motrin occasionally over the past year. (R. 66-67) The last time Cunningham took medication was approximately one month before the hearing. (R. 67)

 The Vocational Expert's Testimony

 Vocational Expert ("VE") Frank R. Mendrick testified at Cunningham's hearing; he was present in the hearing room throughout Cunningham's testimony. (R. 80-83) Mendrick classified Cunningham's previous employment with Sara Lee as semi-skilled with a medium level of exertion, involving lifting a maximum of 35 pounds on occasion. (R. 82) Mendrick opined that Cunningham has no readily transferable skills to the sedentary range or to the sit and stand option range of employment. (Id.) In response to the following question by the ALJ, "[Cunningham's] best, as far as lighter activity would be medium basically?", Mendrick responded, "That's correct, sir." (R. 83) In addition, Mendrick replied affirmatively when the ALJ asked whether there were a number of jobs for a claimant "if the claimant had the ability to perform sit or stand action jobs, with no lifting over 10 pounds." *fn7" (Id.)

 Cunningham's Medical Records

 1. Dr. Russell's Spinal Disorders Report

 On January 21, 1992, Cunningham's treating physician, Dr. Russell, completed a "Spinal Disorders" report form at the request of the Illinois Bureau of Disability Determination Services in connection with Cunningham's application for benefits. (R. 152-53) Cunningham was seen by Russell on that date. Russell diagnosed Cunningham as suffering from lumbar radiculopathy and dated the onset of Cunningham's back problems to his surgeries in 1977 and 1988. (R. 152) Russell reported that Cunningham complained of pain in the lumbosacral area, that there was no sensory loss, that Cunningham exhibited hyper-reflexive reflexes (with greater hyper-reflexivity in the left lower extremities than in the right); that there was no muscle wasting (i.e., atrophy); and that Cunningham ambulates without assistance. (Id.) No abnormalities of gait were noted. (Id.) Russell reported that Cunningham's straight leg raising was positive at 60degree on the left and 70degree on the right. (R. 153) Cunningham had full range of motion in the cervical spine with no paravertebral muscle spasm. With respect to the lumbosacral spine, Cunningham's range of motion for flexion was full (900) but extension was restricted to 150 (normal = 30degree) and paravertebral muscle spasms were present. (Id.) Under abnormalities of lateral flexion, Russell noted that Cunningham's lateral flexion was 30degree (normal flexion in degrees is not indicated). In response to an item inquiring as to Cunningham's ability to do work related activities, Russell stated, "He may be able to perform sedentary work." (Id.) Russell noted that he did not have access to Cunningham's x-rays or other old records. (R. 152)

 2. Dr. Kim's Residual Functional Capacity Assessment

 On January 31, 1992, Dr. Young-Ja Kim, M.D., completed a "Residual Physical Functional Capacity Assessment" of Cunningham in connection with his application for benefits. (R. 154-161) In his assessment of Cunningham's exertional limitations, Kim indicates that Cunningham can occasionally lift and/or carry 10 pounds, frequently lift and/or carry less then 10 pounds, and is not further limited in his ability to push and/or pull. (R. 155) Further, Kim indicates that Cunningham can stand and/or walk for a total of at least 2 hours in an 8-hour workday and can sit for about 6 hours in an 8-hour workday. (Id.) With respect to postural limitations, Kim indicated that Cunningham cannot climb rope or scaffolds but was otherwise capable of frequently crawling, crouching, kneeling, stooping, balancing, and climbing ramps, stairs or ladders. (R. 156) Kim noted no manipulative, visual, communicative, or environmental limitations. (R. 157-58) In what appears to be a recounting of Dr. Russell's report *fn8" , Kim also noted Cunningham's complaint of pain in the lower back, that his ambulation is unassisted, that straight leg raising was positive at 60degree on the left and 70degree on the right, that sensory loss and muscle atrophy were absent, that range of motion of the lumbosacral spine was 90degree for flexion and 15degree for extension with paravertebral muscle spasms, and that Cunningham's lower extremities exhibited increased reflexivity-with the left side greater than the right. (R. 161)

 3. Dr. Trafimow's Consultative Examination Report

 At the hearing, the ALJ recommended that an independent orthopedic exam be conducted. (R. 84) That examination was conducted on June 24, 1993 by Jordon Trafimow, M.D. (R. 168-174) In his evaluation report, Trafimow stated that he had reviewed all reports provided by the Bureau of Disability Determination Services and had spent 30 minutes with Cunningham. (R. 168) Trafimow recounted Cunningham's surgical history, and reported Cunningham's contention that neither surgery had helped him and that his pain was the same as before. (Id.) Trafimow recited Cunningham's pain report as follows:

The claimant's current pain starts in the back, just to the left of the midline at about the lumbosacral junction level. There is also pain in the right buttock, radiating down the posterior aspect of the right thigh to the knee, but there is no pain radiating below the knee. The pain is made worse by walking, bending, lifting etc. and made better by rest.

 (Id.) Trafimow also noted Cunningham's claims that he can walk approximately one block, stand for about thirty minutes, and lift five to ten pounds. (Id.) Regarding his orthopedic examination of Cunningham, Trafimow reported that Cunningham ambulated without an assistive device and that Cunningham walked back and forth for forty feet in the examination room without any obvious sign of pain or discomfort. (R. 169) Trafimow also noted that Cunningham "had no difficulty sitting in a chair[,] getting out of the chair[, and] climbing onto and off the examining table." (Id.) Trafimow reported that Cunningham has full range of motion in his neck; and, with respect to Cunningham's back, Trafimow stated:

Full range of motion without tenderness, muscle spasm or deformity. Straight leg raising is limited on the left to about 30degree and on the right to about 30degree, in each case limited by reproduction of back pain and not by buttock or leg pain. The patient could bend forward approximately 90degree. However, he bent his knees to a considerable degree while doing this. He said that he could not go further because of pain at the insertion of the erector spinae muscles into the sacrum on the left side. Lateral bending was carried out and was restricted by pain at this same location.

 (Id.) Trafimow's neurological examination of Cunningham revealed:

Excel lent strength of toe and ankle dorsiflexors and perineals on the right. On the left, however, when I start to apply counter pressure the claimant stops pulling against me. I can tell this because I would pull on the toes with one hand and feel the tendons with the other. When I started to pull against the claimant's toes the tendons would go slack. When I did the same thing on the normal right side, the flow of strength continued unabated and of course, the tendons stayed taut. The same thing happened when I tested the claimant's perineals on the left side. The hip extensors have excellent strength in both sides. The left hip abductors are weaker than the right, but I cannot be sure that the claimant is actually tightening the muscles. Normal strength of quadriceps bilaterally. Cranial nerves II through XII are normal. The knee and ankle jerk reflexes are definitely hyperactive. I was not able to get a positive Babinski. Sensation is intact to touch, toes point downward.

 (R. 170)

 Trafimow reported that x-rays of the lumbosacral spine revealed "preservation of normal lumbar lordosis, intervertebral body heights and disk spaces without evidence of subluxation. Visualized para-osseous soft tissues are unremarkable." (Id.)

 Trafimow found no "problem at all in the left knee. There is no swelling or tenderness and range of motion is full. There ...

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